FEATURE
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dence, you're not going to assume a nurse
bumped the surgeon's arm, you're not going
to assume it's an earthquake," Marin says. "If
that happened, the surgeon would raise it and
it would be a complete defence and the matter
would be done. But that wasn't what the de-
fendant himself was saying happened."
Marin says it's also concerning that the
decision seems to say taking some of the re-
quired steps is enough to meet the standard of
care versus taking all steps or being proficient
in carrying out the required standard of care.
The majority wrote that "Dr. Ward took the
steps he described to identify and protect the
ureter . . . Given this finding, the trial judge
should have dismissed Ms. Armstrong's ac-
tion." The problem with this is it fails to ap-
preciate that the final step, staying away from
the ureter, was not achieved.
"It's concerning to say proficiency isn't re-
FOCUS ON MEDICAL MALPRACTICE
quired essentially," she says. "It is also con-
cerning to plaintiffs that a physician could tes-
tify to, 'I tried to take all the steps — I may not
have been successful, but my intention was to
take the steps.' That could be a defence to al-
most anything if that decision were to hold on
that basis."
Justice Katherine van Rensburg wrote
a lengthy and detailed dissenting opinion,
where she outlines why she believes "the tri-
